Response to “Consultation Paper on proposed amendments to the ICT Act for regulating the use and addressing the abuse and misuse of Social Media in Mauritius”.

Introduction

Hello ICTA,

I read with dismay the proposed amendments to 'ICT Act for regulating the use and addressing the abuse and misuse of Social Media in Mauritius'. The report was published as a PDF on the 14th of April 2021 while Mauritius was amidst it’s second COVID19 lockdown via this link: https://www.icta.mu/docs/2021/Social_Media_Public_Consultation.pdf

I am the Digital Director of La Sentinelle Ltd since 2015 responsable for 13 staffers who rely on digital systems to provide solutions (See:http://lsldigital.com). Our small team’s mission is to inform, manage & provide assistance to the rest of the group counting some 500 employees flagshipped by l’Express brand.

After reading the documentation & myself having a long history dealing with Facebook / social media platforms for our media group note that this document has been written & proposed inadequately:

Comments

Point 3.3 : is especially amateurish in its description: "In Mauritius, we face the added difficulty of the language barrier. In this self-regulatory regime, when offensive and abusive online contents are posted in the native creole language, social media administrators need to first translate and properly understand the meaning of these posts in the local context. In the majority of cases, complaints made by local authorities to the social media administrators remain unattended or are not addressed in a timely manner."

This is simply untrue, close contact by EACH administrator must be carried out by them and the platforms will reply or have a workflow to flag such issues. These can be : swear words, repeated offenders, barring some users, copyright infringement (used most in our case) etc etc

Point 6.2 : I do not believe 'striking a right balance' can be achieved by this government, the ICTA or ANY other local body due to the local intricate relation between state & institutions in Mauritius.

Point 6.7 : shows just how far behind ICTA really is, check implementation date in the UK on this article AND more importantly, cancelled dated Wednesday 16 October 2019: https://www.wired.co.uk/article/uk-porn-block-law-cancelled

Point 6.9 : this amendment itself annoys me. How can I complain to the ICT about this?

Point 6.12 : I do not believe the ICT should be given such powers, instead, they should work constantly/repeatedly with technical experts & social media administrators to achieve a satisfactory outcome. Let's call it a democratic exercise.

Point 7.1 : I don't believe the ICT can identify or determine whether social media content is illegal or harmful. To my knowledge, the ICT (much similar to the MBC) is a tool of the government in power meaning that any opposing opinion/voice can & most certainly be determined harmful. A clear autocratic attempt to impose both censorship & state repression on the basic freedom of citizens of our/any republic.

Point 8.1 : "the proposed statutory framework would ideally be incorporated as a distinct set of legal provisions within the ICT Act itself, rather than by way of regulations."

It most certainly should not as the ICT is not an independent body, who’s staffers/management has not been elected by the people to work for the people.

Point 8.2 : " need to be given legal sanctity by way of new provisions under the ICT Act in the same line as section 32(5) of the ICT Act". In the eventuality that the NDEC becomes a corrupt and/or agenda driven entity, the user/individual will have no recourse but to accept the committee's/authority’s corrupt/agenda driven decision ?

Point 8.3.1 : the option "investigate on illegal and harmful content on its own" should be modified to "investigate on illegal and harmful content in consultation with the concerned users of the platform and/or account administrators directly.”

Point 8.3.2 : "decide whether, in its opinion, online content under investigation is harmful and illegal;"

Should be modified to : "decide whether, in its opinion, online content under investigation is harmful and illegal through proper documented exchanges minuted & recorded whether in text, image, video or audio formats. These contents will be kept by a private/independent party or parties for instant consultation by any member of the public & will be liable to scrutiny on the efficiency of the NDEC."

Point 8.3.3 : "as a timely preventive measure, order the Enforcement Unit to block that content on the internet and/or provide any relevant digital evidence"

Further underlines the oppressive tone of this amendment, the Enforcement Unit cannot be allowed to operate UNLESS it has been given authority through a court order.

Point 9.1 : “it is proposed that the Chairperson and members of the NDEC be independent, and persons of high calibre and good repute.”

Better clarification of what is meant by ‘high calibre & good repute’ needed i.e citizens with a clean judicial history and/or captain of enterprise in the digital sector with a minimum of five years experience handling & managing staff in Mauritius.

Point 10.1 : ICTA, NDEC or the Enforcement Unit cannot be given legal sanctity because their constitutions are not elected. It begs the question as to what the ICTA actually does. Does the authority have the technical acumen and/or volume of staffers to deal as an Enforcement Unit ?

If yes, then the ICTA should be voted in & represent the needs of the local business and/or individuals of the state WITHOUT the intervention of a or any government in place.

Point 11.1: I must admit that Facebook is a local/global monster however the privacy of its users cannot be made bare to the ICTA, the Mauritian Government and/or decrypted. We do not have impartial enough institutions to deal with such private content.

I also note that only Facebook has been highlighted here, are we to believe that it’s subsidiaries (Instagram, WhatsApp mainly) (https://www.investopedia.com/articles/personal-finance/051815/top-11-companies-owned-facebook.asp) are NOT decrypted?

And what of the other social media platforms i.e Telegram, Signal, Kik, Vimeo, YouTube, Twitter, LinkedIn, Twitch, SnapChat, TikTok etc etc

Point 11.2.1: section A “Blocking of the incriminated social media web page without blocking the whole social media site;”.

A ludicrous proposal at best, blocking a certain social media page is a last resort AFTER three or more official warnings are dispatched by the NDEC. After which, the ICTA, NDEC and the Enforcement Unit cannot block, modify or tamper with the social media page UNLESS given proper authority through a court order.

Section B: Please update and clearly outline what is meant by “fake profile page” ?

Section C: Clearly is targeting the independent press and/or opposition parties social media pages, with this in mind this section must be clearly stipulated with an added workflow with guarantees & penalties towards it’s INDEPENDENT institutions in the event of a page block. Additionally, the ICTA, NDEC and Enforcement Unit will be liable to legal actions in the event of failing to carry out the above workflows properly.

Point 12.1: “Unregulated social and digital media can pose a threat to social harmony and national security. The challenges therein can be addressed by regulating social media efficiently in accordance with the provisions of our domestic laws and Constitution.”

Considering that the current MSM party in control of the government have leveraged both Facebook by providing ad money for it’s election campaigns & utilised the services of Cambridge Analytica (See: https://www.lexpress.mu/article/328836/vol-donnees-sur-facebook-maurice-citee-parmi-pays-ayant-sollicite-cambridge-analytica). Can the ICTA explain why the use of social media is permissible for political parties to use ad money to promote propaganda ? Does the ICTA believe that this is both constitutional and not a threat to national security ?

Point 12.2: “The proposed statutory framework will undoubtedly interfere with the Mauritian people’s fundamental rights 20 and liberties in particular their rights to privacy and confidentiality and freedom of expression.”

And the ICTA thinks this is ok? That Mauritian citizens will accept such a modification of it’s liberties without question?

Point 13.3: “Members of the public are welcome to submit their comments on this consultation paper to socialmediaconsultation@icta.mu latest by 05 May 2021 at 16:00 hrs. The comments will be most useful if they are substantiated with rationale examples and alternative proposals.”

The dates are interesting here for such an important bill, it would seem that you ICTA have given approximately 21 days for concerned citizens to send their feedback in the middle of an unprecedented global pandemic. Your timing & suggestion leaves much to be desired, rather seems like a hasty scramble for power we are all too accustomed to.

Summary of questions being released for public consultation

14.1 What are your views on the present approach of self-regulation of social networks by social media administrators themselves where they decide to remove an online content or not based on their own usage policy and irrespective of your domestic law?

Considering the poor track record of our IT institutions, dare I say most institutions on the island, the implicit request for this amendment outlines the lack of the ICT Authority to interact or provide solutions for local social media administrators. Meaning that the authority is not of a democratic exercise but an abuse of power with clear authoritarian goals similar to China, Myanmar, Pakistan etc.

14.2 Do you think that the damage caused by the excesses and abuses of social networks to social cohesion warrants a different approach from the self-regulatory regime presently being enforced by social media administrators themselves?

We must distinguish fake news to abusive content, they are not the same and their outcomes equally are different. The problem in Mauritius is digital literacy or more precisely, the perception of digital literacy. Yes I believe that a different approach is needed for the republic to prosper, with further interactions and discussions amongst stakeholders, the authorities, it’s citizens and the government.

14.3 What are your views on the overall proposed operational framework in terms of the

• National Digital Ethics Committee (NDEC)
• Enforcement Division

which is intended to bring more clarity to section 18 (m) of the ICT Act, where the ICTA is mandated to take steps to regulate or curtail the harmful and illegal content on the Internet and other information and communication services.

Both the NDEC & Enforcement Division have been poorly described & provide little evidence of trust in either proposed setups. One of the most worrying aspects of either is the involvement of such authorities under the purview of an untrust-worthy government(s).

14.4 What are your views on the proposed legal amendments to the ICT Act to give legal sanctity and enforcement power to the NDEC?

I find the very notion of ‘legal sanctity’ embarrassingly clumsy as a suggestion. Not only will it increase mistrust & criticism towards an already bumbling government/institutions but will drive an exodus of skilled digital labour away from an island in a calamitous COVID social/economical environment.

14.5 What are your views on the proposed modus operandi of the NDEC?

Lacking clarity, it seems like one of the numerous committees setup by our governments over the years who are barely efficient & produce little results consequently. I also note the complete omission of dialogue or pedagogic approach to a social issue where the internet users of the island will inherently be the victims.

Any final decision by the ICTA, NDEC or Enforcement Division but be implemented ONLY after referring & gaining the approval via court order.

14.6 What are your suggestions on the safeguard measures to be placed for the NDEC?

• Independence from: individuals, religion, caste, ethnicity, government and/or authority.
• Elected by active members involved in information & digital stakeholders.
• Limited lifetime for any member of the NDEC & Enforcement Division members.
• Work & refer intrinsically with our judicial system.

14.7 What are your views on the use of the technical toolset, especially with respect to its privacy and confidentiality implications when enforcing the mandatory need to decrypt social media traffic?

The proposed technical toolset as stated in this amendment is opaque. If I understand correctly, the proxy server will gather all my internet traffic including login details. I do not agree to such terms whether by the government, ICT Authority, the NDEC or Enforcement Division handling my personal data additionally seeking legal sanctity in the event of a leak or misuse by employees.

14.8 Can you propose an alternative technical toolset of a less intrusive nature which will enable the proposed operational framework to operate in an expeditious, autonomous and independent manner from the need to request technical data from social media administrators?

Discourse between the different stakeholders, from my knowledge, such endeavours are costly & require better comprehension from all involved. To start with, the ICT Authority needs to clearly understand, produce their own workflow whose goals are increased efficiency & transparency towards its citizens.

Additionally, the government MUST in all urgency provide education to governmental employees & the wider population. A curriculum in two formats one being mandatory, the second optional depending on the users specific needs i.e how to identify scams via WhatsApp.

Taking into consideration the perpetual evolvement of technology globally, the curriculum will have to be updated every 2-3 months.

14.9 Should the Courts be empowered to impose sentences (which include banning use of social media) on persons convicted of offences relating to misuse of social media tools?

Definitely, I am slightly surprised to find our judicial system mentioned on the last point of this amendment. We have carried through similar sentences both in Mauritius & abroad with success by work within our local judicial frameworks.

I firmly believe that a stronger fusion between the users, social media, authorities & the legal institutions is the only way to provide an impartial, progressive & democratic mission.

Many thanks for your time.

You may contact me anytime if you have any further questions.